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People v. Franklin

OPINION FILED SEPTEMBER 11, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JEROME FRANKLIN ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT S. PORTER, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendants Jerome Franklin and Rozell Perry were each found guilty of five counts of armed robbery. The trial court entered judgments on these verdicts and sentenced defendant Perry to 5 to 8 years in the penitentiary and defendant Franklin to 4 to 7 years in the penitentiary. Both defendants now appeal to this court.

In this appeal both defendants contend (1) that they were denied a fair trial due to prejudicial comments by the State during closing argument, and (2) that the trial court committed reversible error in erroneously instructing the jury concerning possession of recently stolen property. Defendant Perry raises the additional contention that his sentence should be reduced to the sentence co-defendant Franklin received because Franklin possessed the gun and was the leader throughout the incident.

We affirm.

The testimony presented at trial established that at approximately 9:30 p.m. on August 13, 1975, Burnstine and Kenneth Shelby, Annie Morrison, and William Trotter were awaiting a train at the "L" platform at 55th Street and the Dan Ryan Expressway in Chicago. As they waited, a man, later identified as defendant Franklin, walked past them and approached Maverick Rush who was also waiting for a train on the other end of the platform. Kenneth Shelby and Annie Morrison testified that Franklin had a gun as he walked past them. According to the testimony of the witnesses, after a short conversation between Mr. Rush and Franklin, Mr. Rush pulled out his wallet and handed Franklin some money. Franklin then walked toward the Shelbys, Annie Morrison and William Trotter. Holding a small gun, he warned them not to move. At this point three more men appeared. Mrs. Shelby, William Trotter and Annie Morrison identified defendant Rozell Perry as one of these three men. Perry took a 17-jewel Waltham watch from William Trotter. Franklin took $30 from Burnstine Shelby, $4 from Annie Morrison and a money clip and $22 from William Trotter. Another of the robbers took some money from Kenneth Shelby. Franklin also took Kenneth Shelby's vest and Seiko watch. The assailants then ran up the staircase.

Shortly thereafter a squad car arrived at the scene. Burnstine Shelby, Annie Morrison and Maverick Rush provided the police officers with descriptions of their assailants. Kenneth Shelby, his wife, William Trotter and Annie Morrison then went to Trotter's house, got into his car, and drove around the neighborhood in search of their assailants. Approximately an hour and a half later, they spotted defendant Franklin at 55th and State streets, approximately three blocks from where the armed robbery occurred. Approximately 15 to 20 other people were in the vicinity but defendant Franklin was standing by himself in front of a liquor store. The victims saw Franklin walk approximately 50 to 75 feet to the front of a tavern, where he met two of the other three men who participated in the armed robbery. Mrs. Shelby then flagged down a police car and, accompanied by William Trotter and Annie Morrison, told the officers of the robbery and the fact that the men who had robbed them were across the street. Additional officers arrived at the scene and, after chasing Franklin half a block and scuffling with Perry, the officers apprehended both defendants. At the time of his arrest, defendant Franklin was wearing the same vest taken from Mr. Shelby and a straw hat with a black band and flowered shirt he was wearing at the time of the offense.

One of the arresting officers, Officer Goff, testified that he recovered a bullet from Franklin's pocket at the scene of the arrest. Officer Goff also identified on an inventory sheet the items seized from the defendants at the time of their arrest. These items, a tan vest, a Waltham watch, a Seiko watch and a money clip, were identified as the proceeds of the robbery and received into evidence. At trial, Mr. Trotter identified the watch recovered from defendant Perry by the diamonds at numbers 12, 3, 6 and 9, by its fading color, and by its band which had been changed from the original to a twistoflex. He identified the money clip by its writing, "genuine leather," and by the paint speckles on it acquired at his job as a painter. Also recovered from defendant Franklin was the vest Franklin was wearing at the time of his arrest. Defendants stipulated that the vest, a size 38, was the same size as the vest taken from Mr. Shelby.

A search of defendant Perry disclosed Mr. Shelby's watch, recovered from Perry's pocket. At trial, Mr. Shelby identified the watch by the blue ring on the inside of the face, by the days of the week written in Spanish on the face, and by a scratch on the crystal.

Defendant Perry called Officer Howard Rentz to testify. Officer Rentz testified that he was the first officer to interview the victims. He prepared a police report which made no mention of a tan vest or money clip as items taken in the robbery.

• 1, 2 Defendants argue that they were denied a fair trial due to prejudicial comments made during closing argument. In this regard, defendants first contend that the prosecutor on numerous occasions erroneously interjected his personal beliefs concerning the credibility of witnesses. They cite the following comments: two instances in which the prosecutor stated that the testimony of certain State witnesses was forthright and honest. Although it is true that a prosecutor may not interject his personal beliefs into his closing argument (People v. Hoffman (1948), 399 Ill. 57, 77 N.E.2d 195), he or she may comment on the credibility of the State's witnesses. (People v. Martinez (1977), 45 Ill. App.3d 939, 360 N.E.2d 495.) The instant comments were nothing more than fair comment on the credibility of the State's witnesses and were not error. Defendants further object to the prosecutor's prefacing numerous of his comments with "I submit." These words do not convey personal belief but merely refer something to others for decision. Such comment is not improper. See United States ex rel. Clark v. Fike (7th Cir. 1976), 538 F.2d 750.

• 3 Defendants also complain of the following comment during closing argument:

"I am sure witnesses in that witness box, and that witness box is not a pleasant experience, I can assure you they were here because they wanted to be here."

There was no objection to this comment and we therefore conclude that that objection thereto was waived. (See People v. Arnold (1974), 17 Ill. App.3d 1043, 309 N.E.2d 89.) Furthermore, while we do not approve or condone the above comment, we ...


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